Defining the Rights of Drug Court Participant: A Constitutional Test

Scott McClelland, Indiana University
Kevin Whiteacre, Indiana University

ABSTRACT
The 1990's witnessed an extensive overhaul of how many communities, via their trial courts, have dealt with drug offenders. The question has been "what works?" and in hundreds, even thousands, of communities the answer has been treatment. Be that as it may, in many instances successful treatment has translated into nothing more than increased judicial surveillance and net-widening. What does treatment theory have to contribute to the creation of a model drug court? Do we have a reason to believe it will work? As trial courts have embraced the notion of therapeutic justice, the courts are assuming roles traditionally shouldered by correctional professionals who have historically been constitutionally scrutinized under the 4th and 8th amendments. Now that the supervision of low-level drug offenders is within the ambit of the judiciary, what constitutional protection should be afforded to this population? In an effort to conceptually, and practically, create a model drug treatment court this paper attempts to fashion a constitutional test that may provide guidance to those interested in evaluating the appropriateness of judicially-supervised drug-testing, innovative, yet far-reaching, sanctions and surveillance measures, as well as the non-adversarial approach utilized in the drug treatment court setting.

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Updated 05/20/2006